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The 

Evolution  of  the  Judiciary  System 

of  Pennsylvania 


By 

BENJAMIN  MATTHIAS  NEAD 

President  of  the  Bar  Association  of 
Dauphin  County,  Pennsylvania 


An  Address  delivered  at  the  Annual  Meeting  of  the 

Association 

February  2,  A.D.  1906 


'Quaerere  dat  Sapere  quae  sunt  legitima  vere.' 


HARRISBURS,     PA. 

J,    Horace    McFarlano   Company 
1  907 


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The  Evolution  of  the  Judiciary  System 
of  Pennsylvania,  1626-1836 

By   BENAJMIN   MATTHIAS   NEAD  * 

IT  was  the  forceful  plea  of  a  certain  William  Usselinxc, 
one  time  a  merchant  of  Antwerp,  adventurously  inclined, 
which  moved  Gustavus  Adolphus,  the  lion-hearted  King 
of  Sweden,  to  specifically  grant,  as  part  of  his  cherished  plan 
to  set  "  the  Jewel  of  his  Kingdom"  upon  the  far-away  shore 
of  the  South,  or  Delaware  river  in  North  anerica,  a  warrant, 
— the  first  warrant  of  the  kind  having  erence  to  that  par- 
ticular locality, — for  the  establishment  judicial  tribunal, 
with  jurisdiction  over  territory  now  included  within  the  lim- 
its of  Pennsylvania. 

This  warrant  was  contained  among  other  and  larger  pow- 
ers and  privileges  granted  to  the  "  Swedish  West  India  Com- 
pany," so  called,  a  chartered  institution,  the  jurisdiction  of 
which,  in  trade,  commerce  and  government,  was,  by  original 
intent,  to  extend,  not  only  over  the  rich  domain  in  America, 
but  to  settlements  in  Australia  and  Africa  as  well. 

The  date  of  the  grant  was  June  14,  1626.  The  warrant 
of  judicial  authority  was  in  these  words:  "to  constitute  a 
council  (tribunal),  which,  with  its  officers,  shall  attend  to 
the  administration  of  justice  and  preservation  of  good  laws, 
.  .  .  appoint  judges,  .  .  .  accommodate  differences  be- 
tween citizens  of  the  country  and  the  natives,  as  well  as 
between  directors  or  chambers  (of  the  company),  and  finally 
preserve  everything  in  good  condition  and  under  good 
order."2 

The  settlement  on  the  Delaware,  fostered  by  the  Swedish 

1  An  address,  by  the  retiring  president  of  the  Dauphin  County  Bar  Association, 
at  the  annual  meeting,  February  2,  A.  D.,  1906. 

'Hazzard's  Annals  of  Pa.,  pp.  16-20.    Col.  and  Prov.  Laws  of  Pa.,  p.  420. 

(•) 

224245 


government,  was  of  feeble  growth.  Not  until  nearly  twenty 
years  after  the  granting  of  the  West  India  Company's  char- 
ter, did  its  government  assume  definite  form  under  the  com- 
missioned authority  of  Governor  John  Printz,  by  whom  law 
and  justice  were  first  regularly  administered  within  the  pres- 
ent limits  of  Pennsylvania.  He  was  instructed:  "to  decide 
all  controversies  according  to  the  laws,  customs  and  usages 
of  Sweden."  He  was  not  given  a  special  code  of  laws,  or 
form  of  tribunal  for  the  government  of  the  colony  and  for 
the  dispensing  of  justice,  but  according  to  the  best  authori- 
ties,1 he  was  directed  in  his  decisions,  as  Governor  and  Chief 
Magistrate,  by  a  compilation  of  the  laws,  made  in  1614,  for 
the  general  government  of  the  Swedish  kingdom.  His  judg- 
ments, while  subject  to  review  by  the  Swedish  West  India 
Company,  were  doubtless  rendered  without  the  assistance  of 
a  jury,  for,  although  Swedish  writers  assert  that  trial  by  jury 
is  of  Swedish  origin,  no  instance  is  known  of  its  application 
at  this  period  in  the  colony  on  the  Delaware. 

When  the  Dutch  Governor,  Peter  Stuyvesant,  came  down 
from  New  Amsterdam  (afterwards  New  York)  in  1655,  and 
made  a  conquest  of  the  Swedish  settlement  on  the  Delaware, 
the  appointment  of  a  vice-director  for  the  district,  by  him, 
was  immediately  followed  by  the  establishment  of  a  Dutch 
form  of  government  and  the  constitution,  by  degrees,  of 
proper  officers  for  the  enforcement  of  law  and  the  adminis- 
tration of  justice  under  the  authority  of  the  Council  of  New 
Netherlands,  which  had  jurisdiction  in  the  determination  of 
both  civil  and  criminal  cases. 

There  was  full  authority  to  allow  the  settlement  on  the 
Delaware  its  own  courts.  There  was  chosen  for  it  also  a 
"Fiscaal"  or  "  Schout,"  which,  being  interpreted,  means  a 
chief  prosecuting  officer,  with  duties  combining  both  those 
of  a  sheriff  and  a  district  attorney  or  attorney- general.  The 
Delaware  Colony  was,  at  first,  allowed  but  one  schout,  com- 
missioned by  the  highest  authority  of  the  Dutch  West  India 
Company,  and  instructed,  as  was  the  custom,  directly  from 
old  Amsterdam.    A  tribunal  was  created  consisting  of  three 

1  Cf.  Armstrong's  Notes  to  Upland  Court  Records. 


burgomasters  to  be  appointed  from  the  u  honestest,  fittist 
and  richest."  Seven  schepens  were  chosen  by  the  directors  ( 
from  a  double  number  nominated  by  the  officials  of  the 
Company.  The  duties  of  the  schepens  were  of  a  judicial 
character,  to  give  final  judgment  for  all  sums  under  one  hun- 
dred guilders.  In  cases  where  the  amount  involved  was  over 
one  hundred  guilders,  the  party  aggrieved  was  allowed  the 
right  of  appeal  to  the  director-general  and  council  of  New 
Netherlands.  The  schepens  had  authority  also  to  pronounce 
sentence  in  all  criminal  cases,  but  a  provisional  appeal  from  ^ 
their  judgment  was  allowed.1 

When  the  Dutch,  in  1664,  surrendered  to  the  English 
their  authority  in  the  district  of  the  Delaware  river  and  bay, 
they  had  already  established  three  courts  of  justice, — one, 
the  Upland  Court,  erected  upon  the  foundations  laid  by  the 
Swedes;  one  at  New  Castle  and  one  at  the  Whorekill. 

These  courts,  James,  Duke  of  York,  the  new  English 
proprietory,  continued  by  ordinance  upon  his  final  acquisi- 
tion of  the  territory ;  weaving  in  the  English  with  the  exist- 
ing Swedish  and  Dutch  traditions  of  judicial  administration, 
— forming  the  composite  system  of  the  first  Pennsylvania 
Court  as  William  Penn  found  it  at  Upland  (now  Chester).2 

The  records  of  the  Upland  Court  dating  back  to  1676 
have  been  preserved  in  the  original.  It  is  twenty-five  years 
since  I  carefully  scanned  the  yellow  pages  of  this  ancient 
time-marked  record  book  with  an  interest  as  keen  as  that 
which,  in  company  with  the  present  president  judge  of  our 
courts,  I  once  turned  over  the  leaves  of  the  far  more  ancient 
Greater  and  Lesser  Domesday  Books,  in  their  hiding  place 
in  the  little  chamber  of  the  Old  Rolls  Court,  in  London. 

With  your  kind  indulgence,  I  wish  to  take  just  a  brief 
time  here  to  speak  further  of  these  little  river  courts, — it 
matters  little  which,  for  what  is  true  of  one  is  true  of  all. 

They  consisted  of  justices  of  the  peace,  whereof  three 
made  a  quorum.    They  had  the  powers  of  a  court  of  quarter 

iCol.  and  Prov.  Laws  of  Pa.  Hist.  Notes  Chap.  Ill,  pp.  428,  etc.  O'Call. 
Hist.  New  Netherlands,  Vol.  i,  pp.  102,  etc. 

2 Col.  and  Prov.  Laws — Hist.  Notes,  pp.  455,  etc. 

(3) 


sessions  and,  as  well,  the  authority  to  decide  all  civil  matters, 
under  twenty  pounds,  without  appeal.  Where  a  larger 
amount  was  involved  in  a  civil  action,  and  in  cases  of  capital 
crimes  and  banishment,  an  appeal  lay  to  the  assizes  at  New 
York.  The  right  of  trial  by  jury  was  guaranteed,  but  under 
the  species  of  English  law  administered  by  the  Duke  of 
York  and  set  forth  in  his  Book  of  Laws,  which  somebody 
has  characterized  as  nothing  more  or  less  than  "  a  fancy  of 
Lord  Clarendon,"  no  jury  could  exceed  "the  number 
seaven  or  be  under  six,  except  upon  speciall  causes,  upon 
life  and  death  the  justices  shall  think  fitt  to  appoint  twelve." 
Except  in  cases  of  life  and  death  the  major  part  of  the  jury 
could  give  in  a  verdict,  u  the  minor  being  concluded  by  the 
major  without  any  allowance  of  any  protest  by  any  of  them 
to  the  contrary."1 

These  courts  also  had  a  certain  jurisdiction,  in  express 
terms  granted,  in  matters  of  equity. 

At  Upland,  court  was  held  monthly,  beginning  the 
second  Tuesday  of  the  month. 

The  judges  of  the  Upland  Court,  at  the  time  of  William 
Penn's  arrival,  were:  Mr.  Otto  Ernst  Cock,  chief  justice; 
Mr.  Israel  Helm,  Mr.  Henry  Jones,  Mr.  Lacey  Cock  and 
Mr.  George  Brown,  justices.  The  new  proprietor  mani- 
fested his  confidence  in  the  integrity  and  good  judgment  of 
this  court  by  allowing  the  choice  of  its  chief  justice,  Mr. 
Otto  Ernst  Cock,  and  one  of  the  associate  justices,  Mr. 
Lacey  Cock,  as  members  of  the  Council  of  Nine,  over  which 
his  own  cousin,  William  Markham,  presided,  appointed  by 
him  to  erect  courts  and  take  the  other  steps  necessary  to 
form  the  new  government  of  Pennsylvania.2 

The  royal  charter  to  the  first  proprietary  guaranteed  him 
the  right  to  make  laws  and  to  administer  justice  in  all  its 
forms.  In  his  "laws  agreed  upon  in  England,"  he  fixed  the 
fundamentals  of  the  administration  of  justice,  in  the  govern- 
ment which  it  was  his  purpose  to  set  up,  in  terms  the  most 
positive,  as  follows,  by  sections: 

xCol.  and  Prov.  Laws  of  Pa.,  pp.  33,  34. 
2  Col.  and  Prov.  Laws,  Hist.  Notes,  p.  471. 

(4) 


"  Fifth,  That  all  courts  shall  be  open  and  justice  shall 
neither  be  sold,  denied  or  delayed. 

"Sixth,  That  in  all  courts,  all  persons  of  all  persuasions 
may  freely  appear  in  their  own  way,  and  according  to  their 
own  manner,  and  there  personally  plead  their  own  cause 
themselves,  or,  if  unable,  by  their  friends.    .    .    . 

u  Seventh,  That  all  pleadings,  processes  and  records  in 
courts  shall  be  short,  and  in  English,  and  in  an  ordinary 
and  plain  character,  that  they  may  be  understood  and  justice 
speedily  administered. 

"  Eighth,  That  all  trials  shall  be  by  twelve  men,  and  as 
near  as  may  be  peers  or  equals,  and  of  the  neighborhood, 
and  men  with  just  exception.  In  cases  of  life  there  shall  be 
first  twenty-four  returned  by  the  sheriff  for  a  grand  inquest, 
of  whom  twelve,  at  least,  shall  find  the  complaint  to  be  true ; 
and  then  the  twelve  men,  or  peers,  to  be  likewise  returned 
by  the  sheriff,  shall  have  the  final  judgment.  But  reasonable 
challenges  shall  be  always  admitted  against  the  said  twelve 
men  or  any  of  them."1  ^ 

His  "Frame  of  Government"  (Section  17),  vested  in  the! 
governor  and  council  the  privilege  of  nominating  yearly  a 
double  number  of  judges  and  other  officers,  such  as  sheriffs, 
coroners,  etc.  In  the  assembly,  also,  was  vested  a  similar 
right.  From  the  number  so  nominated,  the  Governor  or  his 
deputy  could  make  choice,  and  commission  for  each  office  t 
the  proper  number  of  persons  to  serve  for  the  ensuing  year^J 

These  provisions  of  the  law  were  immediately  put  into 
practice,  the  appointments  made,  the  commissions  issued 
and  were  in  the  name  of  "William  Penn,  Proprietary  and 
Governor  of  Pensilvania."  These  commissions  were  signed 
from  time  to  time  by  the  Governor,  the  Deputy-governor  or 
Lieutenant-governor,  as  the  case  might  be. 

It  has  been  sometimes  claimed  that  in  early  Pennsylvania  I 
all  judicial  officers  and  sheriffs,  coroners,  etc.,  received  their 
commissions  from  the  Crown,  but  this  was  not  generally  a 
fact.    It  is  true,  however,  that  when,  under  the  provisions  of 

1  Col.  and  Prov.  Law,  p.  ioo. 

2  Col.  and  Prov.  Laws  (Frame  of  Government),  p.  97. 

(5) 


the  Provincial  Act  of  1705,  the  offices  of  sheriff  and  coroner 
become  elective  the  incumbents  were  construed  to  be  officers 
of  the  Crown,  and  were  accordingly  commissioned  by  and 
/required  to  give  bond  to  the  Queen  then  ruling.1 

When  William  Penn  arrived,  in  1682,  he  recognized  the 
authority  of  the  Laws  of  James,  Duke  of  York,  which,  as 
has  been  noted,  had  been  promulgated  for  some  time  (Sep- 
tember 22,  1676),  throughout  the  territory  which  was  now 
to  be  brought  within  the  limits  of  the  province  of  Penn. 
These  laws  continued  in  force  and  effect  until  the  enactment 
of  the  new  code  by  the  first  provincial  assembly  held  at 
Chester  in  the  first  year  of  the  government.2 

The  new  code,  naturally,  worked  imperfectly.  One  of  the 
respects  in  which  it  failed  was  that  it  did  not  provide  any 
method  of  appeal  from  the  judgments  of  the  courts  of  origi- 
nal jurisdiction.  Under  the  Duke's  laws  there  had  been  an 
appeal  to  the  New  York  assizes,  but  that  could  not  avail 
now.  The  new  code  made  no  provision  for  the  trial  of  capi- 
tal offenses.  These  defects  were  remedied  the  year  follow- 
ing. Laws  were  passed  regulating  the  procedure  in  criminal 
causes  and  allowing  appeals  from  the  judgments  of  the  county 
courts  to  the  Governor  and  Council.  The  county  courts 
were  not  given  jurisdiction  in  capital  offenses,  but  original 
jurisdiction,  in  such  cases,  was  reserved  by  the  Governor  and 
Council.  This  continued  to  be  the  case  until  the  constitution 
of  the  first  provincial  court  in  1684.  But,  frequently  after 
that,  the  provincial  court  still  being  in  commission,  many 
causes  cognizable  by  it,  were  frequently  heard  and  deter- 
mined by  the  Governor  or  Deputy-Governor  and  Council. 
This,  advisedly,  for  the  provincial  court  was  ever  a  nonde- 
script body,  with  ill-defined  powers ;  the  prey  of  the  jealousy 
of  locality;  convulsed  with  selfish  quarrels,  out  of  which 
grew,  inter  alia,  the  bitter  denunciation  and  impeachment  of 
the  first  chief  justice  of  the  province,  Nicholas  More;3  and 
withal,  it  was  a  tribunal  exceedingly  unpopular  at  all  times. 

lCi.  Col.  and  Prov.  Laws  (Court  laws),  pp.  297,  etc. 

2  Ibid.  pp.  107,  472. 

3 Col.  and  Prov.  Laws,  Hist.  Notes,  pp.  499-504. 

(6) 


The  Governor  and  Council  also  took  cognizance  of  cases 
in  admirality  and  matters  relating  to  the  orphans'  courts, 
the  status  of  which,  at  this  early  day,  was  not  very  well 
defined. 

In  justice  to  the  Council,  it  must  be  said  that  it  did  not 
pose  as  an  Aula  Regis,  but  endeavored,  always,  to  discourage 
the  taking  of  appeals  to  and  the  bringing  of  suits  before  it 
as  a  court,  but  it  was  not  until  the  passage  of  the  act  of 
1 701  that  the  provincial,  as  well  as  the  other  courts,  were,  to 
a  degree,  definitely  established  and  their  several  functions 
and  jurisdictions  defined.1 

Interesting  as  it  is,  I  dare  not,  in  this  presentation  of  facts, 
attempt  to  follow  in  detail  the  story  of  the  varying  fortunes 
of  the  courts  of  Pennsylvania  during  the  decade  of  unrest 
and  dissension  which  preceded  the  death  of  the  first  pro- 
prietory of  the  province.  The  strife  for  the  maintenance  of 
the  proprietory  prerogative,  the  jealous  regard  of  the  As- 
sembly for  the  rights  of  the  people,  the  ambitious  aims  and 
subserviency  of  the  Council  were  elements  in  the  irrepres- 
sible conflict  which,  even  at  that  early  day,  was  on  between 
the  spirit  of  independence  in  the  people,  who  were  "  inclined 
to  make  a  Pennsylvania  system  of  jurisprudence,  rather  than 
to  introduce  the  English,"  and  the  representatives  of  kingly 
authority,  whose  aim  was  to  preserve  all  the  methods  of  gov- 
ernment according  to  the  English  Constitution,  and  to 
remove  them  as  far  as  possible  from  those  of  a  republic. 

It  might  be  here  remarked,  in  passing,  that  the  M  three 
peacemakers  chosen  by  every  county  court  in  the  nature  of 
common  arbitrators  to  hear  and  end  differences  between  man 
and  man"  (a  plan  of  the  benign  Quaker  founder)  do  not 
seem  to  have  been  working  over-time  during  this  period.2 

The  royal  reservation  in  the  proprietory  grant  that  all 
laws  passed  in  this  province  should  be  submitted,  within  five 
years  after  their  passage,  through  the  English  Board  of 
Trade,  to  the  Privy  Council  for  approval  or  annulment,  and 
the    lesson  which  experience   had    taught   the  Assembly  of 

1  Statutes- at-Large  of  Pa.,  Vol.  II,  p.  148. 
2 Col.  and  Prov.  Laws,  p.  128. 

(7) 


Pennsylvania,  that  every  law  passed  and  submitted  which 
made  for  the  conservation  of  the  rights  of,  and  the  confirm- 
ing of  independent  power  in  the  people  of  Pennsylvania,  was 
annulled,  at  sight,  by  the  appellate  tribunal  of  the  Crown, 
were  responsible  for  the  otherwise  incomprehensible  series  of 
enactments  and  repeals,  re-enactments  and  counter  repeals  of 
the  laws  constituting  the  courts  of  Pennsylvania  during  that 
period;  for  the  delay  of  justice  and  the  consequent  injury 
and  distress  of  the  people.  Little  blame  was  there  to  the 
assemblies  that  they  withheld  their  laws  from  the  English 
Council  until  the  last  day,  in  decency,  it  could  be  done,  and 
that,  immediately  upon  notice  received  of  the  annulment  of 
the  old  law,  they  passed  a  new  one,  as  nearly  in  conformity 
with  the  old  one  as  they  dared. 

The  death  of  the  first  proprietary  in  171 8,  was  an  event 
which  lent  arms  to  the  contending  factions  in  Pennsylvania. 

The  most  complete  legislation  for  the  establishment  of 
courts,  and  the  regulation  of  the  practice  therein,  in  Penn- 
sylvania, up  to  this  time  had  been  the  laws  passed  in  1715.1 

Now,  July  21,  1 719,  these  met  the  fate  of  their  predeces- 
sors and  were  repealed,  in  toto,  by  the  English  Crown,  and 
Pennsylvania  was  again  without  any  judiciary  system  or  plan 
for  the  proper  administration  and  execution  of  law.  With 
the  government  devolved  upon  proprietaries,  whose  chief 
aim  and  ambition  appeared  to  be  to  forward  their  own  per- 
sonal interests  and  to  secure  royal  favor;  with  a  hold-over 
lieutenant-governor  (Sir  William  Keith),  the  most  courtly 
and  most  dangerous  exponent  of  the  royal  right  and  pre- 
rogative which  the  province  knew  since  the  days  of  Benja- 
min Fletcher;  crafty  and  obsequious  with  the  Assembly,  ever 
ready,  since  the  death  of  the  first  Penn,  to  take  issue  with 
the  proprietaries  in  succession  when  necessary  to  advance 
his  own  policy;  with  the  representatives  of  the  people  in  the 
assembly  discouraged  at  the  apparent  futile  outcome  of  their 
endeavors,  it  is  not  strange  that  the  purely  English  idea 
should  be  in  the  ascendancy,  and  that  the  English  Privy 
Council  should,  for  once,  approve  a  Pennsylvania  Act   for 

1  Statutes- at-Large  Vol.  Ill,  pp.  33,  65,  83. 

(8) 


the  advancement  of  justice  and  the  more  certain  administra- 
tion thereof,  the  Act  of  May  31,  1718.1 

Speaking  of  this  act,  Dallas  says:  "Its  adoption  opened 
a  new  era  in  the  administration  of  penal  justice,  the  rigor  of 
the  English  penal  law  being  fully  established  by  it."  This 
law  continued  in  full  force  until  the  adoption  of  a  revised 
penal  code,  after  the  Revolution. 

Following  the  repeal  of  the  general  law  of  171 5,  establish- 
ing courts  of  judicature  in  Pennsylvania,  Lieutenant-Gover- 
nor Keith  continued  the  courts  by  proclamation  and  enabling 
writs,  until  the  year  1722,  when  another  law  was  passed.2  It 
was  this,  the  first  general  court  law  of  Pennsylvania,  which 
was  not  repealed  by  the  Crown,  but  was  continued  in  force 
until  supplied  by  the  new  law  of  1727.3 

In  1726,  Sir  William  Keith  was  succeeded  as  lieutenant- 
governor  by  Patrick  Gordon,  who,  differing  from  Keith,  was 
a  man  of  direct  and  positive  methods.  When  he  learned 
that  a  movement  was  on  foot  to  again  invoke  the  ancient 
practice  of  the  Crown  in  repealing  the  court  laws  of  Penn- 
sylvania—  the  Act  of  1727  —  he  called  the  attention  of  the 
Assembly  to  it ;  and  when,  among  the  rapidly  increasing  en- 
croachments of  the  Crown,  that  catastrophe  happened,  Gov- 
ernor Gordon  joined  with  the  Assembly  in  recognizing  the 
Act  of  1722  as  capable  of  being  revived  by  legislative  action 
and  again  being  put  in  full  force.  It  was  under  this  revived 
statute  that  courts  of  justice,  in  Pennsylvania,  were,  in  the 
main,  conducted  until  the  outbreak  of  the  Revolution,  when, 
with  the  adoption  of  the  State  Constitution  of  1776,  the  old 
system,  modified  and  necessarily  changed,  by  that  instrument 
was  engrafted  into  the  new  government. 

A   COURT   OF   CHANCERY 

The  most  notable  triumph  of  the  policy  of  Lieutenant- 
Governor  Sir  William  Keith,  at  this  period,  was  the  estab- 
lishment, with  the  consent  of  the  Assembly,  of  a  Court  of 

1  Statutes -at -Large,  Vol.  Ill,  p.  199. 
2 Col.  and  Prov.  Laws,  pp.  304,  382. 
3Statutes-at-Large,  Vol.  IV,  p.  84. 

(9) 


Chancery,  or  Equity  (August  10,  1720),  with  himself  as 
Chancellor.1  This  was  a  proposition  which,  hitherto,  the 
Assembly  had  met  with  the  most  unyielding  antagonism. 
The  story  of  the  establishment  and  maintenance,  for  nearly 
sixteen  years,  with  much  of  the  dignity  of  an  English  tribu- 
nal, of  Keith's  Court  of  Chancery,  presents  the  most  pictur- 
esque phase  of  the  growth  of  a  judiciary  system  in  Pennsyl- 
vania. Because  of  its  close  affinity  to  and  accord  with  English 
tradition,  its  broad  exposition  of  the  theory  sought  to  be 
put  into  practice  in  certain  of  the  other  colonies,  it  stood 
high  in  royal  favor  and  escaped  the  frequent  chastenings  of 
the  appellate  councils  of  the  Crown,  to  which  the  other  courts 
were  constantly  subjected. 

But  Keith,  the  creator  and  chancellor  of  this  court,  at 
length,  after  his  court  had  been  in  existence  some  six  years, 
was  asked  to  lay  down  his  authority  as  Lieutenant-Governor 
and  Chancellor;  this,  perhaps,  as  a  direct  result  of  a  quarrel 
he  had  with  James  Logan,  who  stood  high  in  favor  with  the 
proprietary  and  had  the  confidence  of  the  crown. 

Under  Patrick  Gordon,  the  successor  of  Keith  in  the 
government,  this  court  was  continued  for  the  entire  period 
of  the  former's  administration,  but  not  without  antagonism. 
The  attitude  of  the  Crown  toward  the  other  courts  and  its 
general  encroachments  were  conducive  of  a  close  study  of 
chartered  rights  by  the  people ;  and  so  it  came  about,  near 
the  close  of  Lieutenant-Governor  Gordon's  administration, 
in  1736,  that  the  right  of  the  equity  court  to  exist  and  of  the 
Lieutenant-Governor  to  preside  as  chancellor,  were  declared 
to  be  rights  denied  by  the  Pennsylvania  charter  when  that 
instrument  was  properly  construed. 

Per  contra,  the  practice  in  the  other  colonies  was  pleaded. 
This  was  declared  irrelevant,  unless  it  could  be  shown  that 
the  other  colonies  had  charters  identical  with  that  of  Penn- 
sylvania. The  Assembly  was  constrained  to  be  jealous  of  the 
chartered  rights  of  the  people.  There  had  been  too  much 
juggling  with  the  laws.  The  latest  royal  instructions  were 
most  sinister  in  their  character.    It  was  a  plain  provision  of 

1  Col.  and  Prov.  Laws  p.  386. 

(10) 


the  charter  which  permitted  all  laws  passed  to  take  effect 
immediately,  subject,  of  course,  to  review  and  disapproval  by 
the  Crown,  within  five  years.  But  what  was  this  new  doc- 
trine that  no  laws  should  be  passed  by  the  Pennsylvania 
Assembly,  without  the  suspending  clause  (suspending  their 
operation  until  they  had  received  the  royal  sanction)?  The 
people  had  submitted  for  years  to  the  procedure  ordained 
by  their  charter.  When  a  law  was  passed  in  Pennsylvania  it 
was  first  submitted  to  the  Board  of  Trade  in  London.  It 
was  next  submitted  to  the  King's  Solicitor  for  his  opinion ; 
then  it  came  back  to  the  Board  of  Trade  and  was  considered 
and  acted  upon";  thence  to  the  King's  Council,  where  it  was, 
at  length,  approved  or  received  its  quietus, — usually  the 
latter.  It  was  a  cumbersome  practice,  but  it  was  in  accord 
with  the  charter.    Let  the  charter  now  be  enforced ! 

The  last  three  sessions  of  Assembly,  before  the  death  of 
Governor  Gordon,  in  1736,  were  strenuous  ones,  the  fight 
for  chartered  rights  being  to  the  fore,  but  with  the  death  of 
the  Lieutenant-Governor  the  Court  of  Chancery  died.  There 
was  no  formal  repeal  of  the  law  upon  which  it  depended  for 
its  existence,  but  no  chancellor  ever  sat  again  and,  as  Mr. 
Rawle,  in  his  "Equity  in  Pennsylvania"  (an  exhaustive  treat- 
ise on  this  subject,  upon  which  I  depend  as  authority),  says: 
"  Equity  as  a  separate  system  (in  Pennsylvania)  slept  for 
just  one  hundred  years,"  a  statement  having  reference,  of 
course,  to  the  defining  of  equity  powers  and  the  lodgment 
thereof  in  the  Supreme  and  Common  Pleas  Courts  of  Penn- 
sylvania by  the  civil  code  of  1836. 

NOMENCLATURE   OF   COURTS 

In  reorganizing  the  courts  during  the  Revolution,  and 
after  the  adoption  of  the  State  Constitution  of  1776,  no  rad- 
ical change  was  made  in  their  composition  or  form.  The 
chief  purpose  of  changes,  evidently,  was  to  make  clear  the 
disassociation  of  all  the  courts  from  any  semblance  of  alle- 
giance to  the  British  government.  The  legislature  distinctly 
declared  "that  the  courts  of  justice  should  be  held  as  here- 


tofore."  And  thus,  with  little  change,  with  the  rehabilitation 
and  recomposition  of  the  old  "  High  Court  of  Errors  and 
Appeals,"  and  the  modifications  made  necessary  by  the  adop- 
tion of  the  Federal  Constitution,  the  old  traditional  courts  of 
the  province  and  early  state  glided  gracefully  into  the 
grooves  marked  out  for  them  under  the  Pennsylvania  State 
Constitution  of  179Q.  And,  with  many  anomalous  charac- 
teristics, the  result  of  the  long  period  of  their  growth,  and 
of  their  composite  nature,  gradually  disappearing,  as  time 
moved  on,  they  came  to  be,  at  last,  under  the  perfecting 
processes  of  the  Civil  Code  of  1836,  the  much-admired  and 
respected  Pennsylvania  System,  as  it  remains  substantially 
today. 

Under  the  regime  prior  to  the  adoption  of  the  State  and 
Federal  Constitutions,  the  Pennsylvania  tribunals  in  which 
judicial  power  was  from  time  to  time  vested,  following 
closely  the  English  nomenclature,  were  styled: 

The  General  Quarter  Sessions  of  the  Peace, 

The  Courts  of  Oyer  and  Terminer  and  General  Gaol  Delivery, 

The  County  Courts,  or  Courts  of  Common  Pleas, 

The  Register's  Courts  and  Orphan's  Courts, 

The  Court  for  the  Trial  of  Negroes  (Special), 

The  Court  of  the  Admiralty, 

The  Court  of  Chancery  and  Equity  (Keith's),  17 19-1736, 

The  Provincial  Court,  1684, 

The  Provincial  or  Supreme  Court,  1 7 15, 

The  Supreme  Court,  1722, 

The  High  Court  of  Errors  and  Appeals,  1780. 

Under  the  Constitutions:  Federal  authority  abrogated 
the  state  admiralty  courts.  By  state  authority,  judicial  power 
was  vested  in : 

A  Supreme  Court, 

Courts  of  Oyer  and  Terminer  and  General  Gaol  Delivery, 

Courts  of  Common  Pleas, 

Orphan's  Courts  and  Register's  Courts, 

Courts  of  Quarter  Sessions  of  the  Peace, 

Justices  of  the  Peace. 

And  for  the  period  from  April  13,  1791,  to  February  24, 
1806: 

The  High  Court  of  Errors  and  Appeals. 

(12) 


REVIEW   OF   CERTAIN    COURTS 

In  an  address  of  this  character  it  would  not  be  feasible, 
nor  in  good  taste,  to  attempt  even  a  casual  review  of  all 
these  courts,  so  I  have  selected  but  two  of  the  general  courts, 
for  a  brief  review  at  this  time :  the  old  Provincial  Court,  out 
of  which  grew  the  Supreme  Court  of  the  State,  and  the  High 
Court  of  Errors  and  Appeals. 

Before  passing  to  this  review,  however,  it  may  be  inter- 
esting and  perhaps  instructive,  as  a  commentary  on  the 
times,  to  take  just  a  look  at  the  powers  conferred  upon  a 
special  court,  created  with  the  sanction  and  under  the 
administration  of  the  benign  Quaker  founder  of  Pennsyl- 
vania. It  was  a  special  court  for  the  trial  and  punishment  of 
negroes  alone,  who  were  charged  with  capital  offenses,  among 
which  were  included  rape,  or  attempted  rape,  upon  white 
women. 

This  special  court  was  established  for  each  county.  Two 
justices  of  the  peace  and  six  of  the  most  substantial  free- 
holders of  the  neighborhood  constituted  the  court  under  the 
Governor's  commission.  If  any  negro  within  the  govern- 
ment was  convicted  of  committing ;"  a  rape  or  ravishment" 
upon  any  white  woman  or  maid,  or  of  murder,  burglary  or 
baggery,  the  punishment  was  death.  For  an  attempted  rape 
upon  a  white  woman  or  maid  the  punishment  was  castration. 

Nor  were  negroes,  in  those  days,  permitted  to  get  into 
temptation  by  congregating  together.  They  were  permitted 
to  assemble  only  to  the  number  of  four  in  company,  particu- 
larly on  First  Days.  Offending  against  this  last  provision  of 
the  law  was  punished  by  public  whipping,  thirty-nine  lashes 
being  the  quota.1 

THE  PROVINCIAL  COURT.  THE  PROVINCIAL  OR  SUPREME 
COURT.  THE  SUPREME  COURT 

The  Supreme  Court  of  Pennsylvania  had  its  inception  in, 
and  was  evolved  from  the  provincial  court  of  the  early  days 
of  the  government.    This  appellate  court  was  first  constituted 

1  Statutes-at-Large,  Vol.  II,  pp.  77,  235. 

(13) 


f 


in  1684,  by  act  of  Assembly,  and  by  virtue  of  that  statute 
and  subsequent  ones,  up  to  the  year  1722,  held  its  jurisdic- 
tion and  exercised  its  functions.1 

This  court  consisted  of  five  persons  called  provincial 
judges,  appointed  by  the  Governor,  Deputy-Governor,  or 
Lieutenant-Governor,  for  the  time  being,  and  duly  commis- 
!  sioned  under  the  great  seal  of  the  province.  Three  of  these 
judges  were  competent  to  hold  this  court  of  appeal  at  Phila- 
delphia, twice  in  each  year.  The  provincial  court,  at  first, 
had  jurisdiction  to  hear  and  determine  appeals  from  the 
county  courts  and  to  try,  originally,  titles  of  land  and  all 
causes,  civil  and  criminal,  not  determinable  by  the  county 
courts. 

At  least  two  of  the  judges  thus  commissioned  were 
charged  with  the  duty  of  riding  the  circuit  of  the  several 
counties  in  the  fall  and  spring  of  each  year.  The  disposition 
of  the  decrees  or  sentences  of  the  lower  courts  by  the  pro- 
vincial court  was  not  final,  but  the  party  aggrieved  therewith 
had  the  right  of  appeal  to  the  King. 

By  the  Act  of  1715  this  court  of  appeals  was  styled  the 
Supreme  Court.  The  number  of  judges  was  fixed  at  four, 
and  one  was  commissioned  as  the  chief  justice.  The  writs 
were  issued,  for  the  first  time,  in  the  name  and  style  of  the 
King,  his  heirs  and  successors,  and  bore  teste  in  the  name 
of  the  chief  justice  for  the  time  being.  The  judges  were  for- 
bidden to  sit  judicially  in  the  lower  courts  in  any  matter,  but 
were  authorized  "to  hold  plea"  in  equity,  by  bill,  appeal, 
petition  or  suit  brought  by  any  person;  or  other  matter 
relievable  in  equity. 

The  judges  were  paid  by  fees  which  were  double  the  fees 
paid  in  county  courts  in  like  cases. 

This  was  part  of  the  judiciary  system  which,  when  the 
Crown  had  repealed  the  legislation  creating  it,  Lieutenant- 
Governor  Sir  William  Keith  had  kept  in  being  and  force  by 
ordinance  and  writ  until  the  passage  of  the  Act  of  1722,  the 
important  and  effective  ante-revolutionary  judicial  legislation. 

1  Col.  and  Prov.  Laws  pp.  168,  184,  225.  Statutes-at-Large,  Vol.  II,  pp.  134, 
150,  201.    Statutes-at-Large,  Vol.  Ill,  pp.  66,  304. 

(14) 


Under  this  act  but  three  judges  were  commissioned  for 
the  Supreme  Court.  Each,  however,  was  invested  with  full 
power  and  authority  to  issue  writs  of  habeas  corpus,  cer- 
tiorari, error  and  all  remedial  and  other  writs  and  process 
returnable  to  that  court.  The  court  was  also  invested  with 
the  right  to  hear  and  determine  all  manner  of  pleas,  plaints 
and  causes  which  might  be  removed  or  brought  from  the 
respective  quarter  sessions  of  the  peace  and  courts  of  com- 
mon pleas  of  the  counties;  to  examine  and  correct  all  and 
all  manner  of  errors  of  the  justices  and  magistrates  of  the 
province,  in  their  judgments,  processes  and  proceedings ;  as 
well  as  in  all  pleas  of  the  Crown  and  in  all  pleas,  real,  per- 
sonal and  mixed;  to  reverse  or  affirm  judgments  in  these 
matters;  to  examine,  correct  and  punish  contempts;  to 
award  process  for  levying  fines,  forfeitures  and  amercements, 
and  generally  to  minister  justice  to  all  persons  and  to  exer- 
cise the  jurisdictions  and  powers  granted,  as  fully  and  amply 
to  all  intents  and  purposes,  whatsoever,  as  the  Justices  of  the 
Court  of  Kings  Bench,  Common  Pleas  and  Exchequer,  at 
Westminster,  or  any  of  them  may  or  can  do;  saving  at  all 
times  a  final  appeal  to  His  Majesty  in  Council,  or  to  such 
courts  or  judges  as  by  the  Sovereign  Lord,  the  King,  his  heirs 
or  successors,  had  been  appointed  in  Britain  to  receive,  hear 
and  judge  of  appeals  from  His  Majesty's  plantations.1 

The  practice  of  riding  the  circuit  as  the  law  commanded, 
when  the  Supreme  Court  sat  for  the  trial  of  an  issue  of  fact, 
having  fallen  into  disuse  and  the  practice  being  introduced 
of  trying  all  issues  of  fact  joined  in  all  causes,  irrespective  of 
the  county  in  which  they  arose  at  nisi  prius2  in  Philadelphia, 
the  Act  of  1767  steps  in  and  makes  a  very  decided  change 
in  the  composition  of  the  Supreme  Court.3  It  provided  that  | 
four  persons  of  known  integrity  and  ability  were  to  be  com- 
missioned by  the  Governor  to   be  judges   of  the  Supreme 

1  Statutes -at -Large,  Vol.  Ill,  pp.  66,  302. 

2 Nisi  prius:  "  Unless  before."  A  judicial  writ  by  which  the  sheriff  is  to  bring 
a  jury  to  Westminster,  "  unless  before  "  that  day,  the  Lord's  Justices  of  the  King 
go  into  his  county  to  take  assizes.  From  this  writ  the  Philadelphia  Court  took  its 
name. 

3Statutes-at-Large,  Vol.  VII,  pp.  108,  109. 

(i5) 


/Court,  one  to  be  distinguished  as  chief  justice.  The  judges 
were  given  all  the  powers  to  be  derived  from  existing  laws 
and  were  required  to  ride  the  circuit  twice  in  every  year,  if 
occasion  required;  their  expenses  in  counties  where  no 
court  was  held  to  be  paid  by  the  province,  but  where  court 
was  held  in  a  county  the  expenses  were  to  be  paid  out  of  the 
county  stock.  No  ethical  question  as  to  the  propriety  of 
passing  free  over  the  public  ways  vexed  the  judges  in  those 
days,  for  the  law  expressly  provided  that  they,  their  clerks 
and  their  servants  should  pass  and  repass,  and  be  conveyed 
by  the  ferrymen  over  all  the  several  ferries  within  the  prov- 
ince, without  paying  any  ferriage  fee  or  reward  for  the  same. 
By  the  provisions  of  this  Act  the  removal  of  causes  under 
fifty  pounds,  from  the  Courts  of  Common  Pleas  into  the 
Supreme  Court,  was  prohibited. 

When  the  judiciary  was  organized  under  the  revolutionary 
changes  in  the  government,  it  was  declared  by  legislative 
enactment,  in  general,  that  the  courts  of  justice  should  be 
held  as  heretofore.  Subsequent  changes  in  the  law,  govern- 
ing the  Supreme  Court,  made  before  the  adoption  of  the 
Constitution  of  1790,  Act  of  1786,  included  a  provision  that 
the  court  should  hold  four  terms  annually.  It  was  invested 
with  original  jurisdiction  within  the  city  and  county  of  Phila- 
delphia. No  suit  upon  cause  of  action  existing  prior  to  the 
passage  of  the  law  granting  this  jurisdiction  was  cognizable, 
except  suits  of  the  Commonwealth  and  questions  relating  to 
land  titles.  The  court  was  also  empowered  to  make  rules  to 
regulate  its  practice.  No  suit  was  allowed  to  be  removed 
from  the  common  pleas  by  writ  of  certiorari  issued  by  the 
plaintiff  nor  any  writ  of  habeas  corpus  or  certiorari  after 
the  same  had  been  at  issue  two  terms  or  more.  In  fact,  no 
plaintiff  was  allowed  to  remove  to  the  Supreme  Court  any 
action  which  could  not  have  been  originally  instituted  there. 
The  Constitution  of  1776  required  that  the  judges  of  the 
Supreme  Court  should  have  fixed  salaries.  They  were  to  be 
commissioned  for  seven  years,  but  eligible  to  reappointment, 
and  subject  to  removal,  at  any  time,  by  the  Assembly,  for 
^    misbehavior.      They    were    also    prohibited    from    holding 

(16) 


other  offices,  which  practice  had  been  such  a  prolific  source 
of  trouble  in  the  past,  and  neither  fees  or  perquisites  in  addi- 
tion to  their  salaries  were  allowed  them.  The  powers  of  a 
court  of  chancery  were  also  given,  so  far  as  the  same  related 
to  the  perpetuating  of  testimony;  to  obtaining  evidence  from 
places  not  within  the  limits  of  Pennsylvania  and  to  the  care 
of  the  persons  and  estates  of  those  who  were  non  compos 
mentis. 

By  the  adoption  of  the  Federal  Constitution  and  the 
Judicial  Act  of  1789,  the  judical  authority  of  the  states  was 
materially  circumscribed,  which  condition  of  affairs  was  very 
apparent  in  the  Pennsylvania  Constitution  of  1790  and  the 
legislative  inactments  immediately  following.1  The  Supreme 
Court  was  organized  to  hold  three  terms  and  courts  of  nisi 
prius,  as  formerly.  All  judges  of  courts,  including  the  Su- 
preme Court,  were  forbidden  to  practice  in  any  court  of 
this  Commonwealth  or  elsewhere,  another  practice  which 
was  not  uncommon  in  the  early  days  of  the  province.  On 
final  judgments  of  the  Supreme  Court,  a  writ  of  error  was 
provided  for  to  the  High  Court  of  Errors  and  Appeals.2 
All  judges  were  to  hold  their  commissions  during  good* 
behavior,  removable  by  impeachment.  Compensation  couldl 
be  fixed,  but  not  diminished,  during  continuance  in  offiteT 
The  jurisdiction  of  the  court  was  extended  over  the  state. 
In  the  year  1806,  the  right  was  denied  the  Supreme  Court  to 
try  issues  of  fact,  in  banque,  etc.  The  revolution  did  away 
with  appeal  to  Great  Britain.  The  review  of  the  judgments 
of  the  Supreme  Court  which  lay  in  a  writ  of  error  to  the 
High  Court  of  Errors  and  Appeals,  died  with  the  abolition 
of  that  court,  and  at  the  period  when  this  review  of  the 
subject  closes  no  writ  of  error  lay  from  the  final  decisions 
of  the  Supreme  Court  to  the  Supreme  Court  of  the  United 
States,  except  in  cases  peculiarly  within  the  jurisdiction  of 
the  last-mentioned  court.  The  Act  of  1834  organizing  courts 
of  justice  declares  the  Supreme  Court  of  Pennsylvania  to 
consist  of  a  chief  justice  and  four  associates,  and  the  Act  of 

1  Cf .  Smith's  Laws  of  Penna.,  Vol.  I  (notes),  pp.  151-154. 

2  Vide  infra . 

(17) 


1836 — of  the  Civil  Code — fully  and  clearly  sets  forth  its 
limitations  and  jurisdictions,  both  generally  and  with  respect 
to  the  city  and  county  of  Philadelphia. 

THE  HIGH  COURT  OF  ERRORS  AND  APPEALS,  "THE 
LOST  COURT." 

When  the  people  of  Pennsylvania  had  become  fully  im- 
bued with  the  spirit  of  the  Revolution,  they  awoke  to  the 
realization  of  a  fact  that  was  "  gall  and  wormwood"  to  them. 
It  was  that  the  laws  which,  per  force,  they  had  continued  in 
operation,  touching  them  most  closely  as  to  their  persons 
and  property,  the  laws  upholding  the  courts,  gave  them  no 
tribunal  of  last  resort,  excepting  the  council  of  the  hated 
King  of  Great  Britain,  or  such  tribunals  as  it  was  his  royal 
pleasure  to  appoint  for  the  final  hearing  of  the  appeals  from 
the  American  plantations, — at  best  "  a  very  expensive,  diffi- 
cult and  precarious  remedy."  For  nearly  two  years  the  peo- 
ple had  smarted  under  this  situation ;  then  their  representa- 
tives in  Assembly  came  to  the  rescue.  This  body  declared 
that  the  good  people  of  the  Commonwealth  of  Pennsylvania, 
by  their  happy  deliverance  from  their  late  dependent  con- 
dition and  by  becoming  free  and  sovereign,  had  been  released 
from  a  disgraceful  badge  of  slavery  and  had  acquired  the 
transcendent  benefit  of  having  justice  at  home  at  a  moderate 
cost  and  charge,  and,  having  adopted  the  common  law  of 
England,  had  the  right  to  enjoy  the  full  benefit  thereof  by 
the  erection  of  a  competent  jurisdiction  within  the  state  for 
the  hearing,  determining  and  judging  in  the  last  instance 
upon  complaints  of  error  at  common  law:  and  also  a  com- 
petent court  of  appeals  for  reviewing,  reconsidering  and  cor- 
recting the  sentences  and  decrees  of  the  Court  of  Admiralty 
(other  than  in  cases  of  capture  upon  the  waters  in  time  of 
war  from  the  enemies  of  the  United  States  of  America)  and 
likewise  the  decrees  and  sentences  of  the  several  registers  of 
wills  and  for  granting  administrations.  Upon  this  declara- 
tion and  to  this  end  the  Assembly  created,  on  the  28th  day 
of  February,  1780,  the  High  Court  of  Errors  and  Appeals.1 

1  Statutes -at- Large,  Vol.  X,  pp.  52,  etc. 

(18) 


The  law  creating  the  court  provided  "that  when  any  final 
judgment  shall  hereafter  be  given  (in  the  Supreme  Court) 
in  any  suit  or  action,  real,  personal  or  mixed,  or  when  any 
final  decree  or  sentence  shall  be  pronounced  in  the  Court  of 
Admiralty  of  the  Commonwealth  (other  than  in  the  cases  of 
capture  made  during  war),  or  when  any  final  decree  or  sen- 
tence shall  be  pronounced  by  any  register  of  wills  and  for 
granting  administrations,"  the  party  aggrieved  was  granted 
the  right  of  appeal  to  the  newly  created  court.  — « 

The  president  of  the  Supreme  Executive  Council,  the  | 
judges  of  the  Supreme  Court,  the  judges  of  the  Admiralty, 
for  the  time  being,  together  with  three  persons  of  known 
integrity  and  ability,  appointed  and  commissioned  and  re- 
movable from  office,  in  the  same  manner  as  judges  of  the 
Supreme  Court,  were  made  to  constitute  the  new  court, 
which,  as  before  stated,  was  styled  "  The  High  Court  of  J 
Errors  and  Appeals." 

No  justices  of  the  Supreme  Court,  or  judge  of  the  Ad- 
miralty, who  had  heard  or  determined,  in  the  first  instance, 
any  of  the  causes  appealed,  was  permitted  to  sit  again,  judi- 
cially, on  the  hearing  of  the  same  cause  or  controversy,  in  the 
Higher  Appellate  Court. 

No  writ  of  error  or  appeal  was  allowed  until  the  party  or 
parties  in  error,  appellant,  by  himself  or  through  his  agent 
or  attorney-in-fact,  had  filed  an  affidavit  with  the  clerk  of  the 
Court  of  Errors  and  Appeals,  attesting  that  the  matter  in 
controversy  exceeded  the  value  of  ufour  hundred  bushels  of 
wheat,"  and  had  entered  into  a  recognizance  in  double  the 
value  of  the  matter  in  dispute,  to  prosecute  his  appeal  with 
effect. 

Parties  who  had  appealed  any  cause  from  the  Supreme 
Court  of  the  Province  to  the  King  of  Great  Britain  in  Coun- 
cil and  upon  which  no  judgment  had  been  rendered,  prior  to 
the  4th  day  of  July,  1776,  were  permitted  to  bring  a  new 
writ  of  error  to  the  Court  of  Errors  and  Appeals,  upon 
making  the  affidavit  and  giving  the  security  prescribed,  and 
the  Appellate  Court  was  enjoined  to  proceed  in  such  causes 
as  in  others  made  cognizable  in  that  court. 

(19) 


This  court  was  required  to  sit,  in  Philadelphia,  at  least 
twice  in  every  year  in  April  and  September.  The  judges  and 
other  persons  who  constituted  this  court  were  entitled,  each, 
to  receive  as  compensation,  "  the  value  of  two  bushels  of 
wheat,"  for  each  day's  attendance  upon  the  business  of  the 
court. 

Thus  constituted,  the  High  Court  of  Errors  and  Appeals 
continued  until  the  adoption  of  the  State  Constitution  of 
1790,  which  rendered  certain  changes  necessary,  so  by  Act 
of  Assembly,1  the  court  was  reorganized  throughout.  The 
president  of  the  Supreme  Executive  Council,  formerly  a 
member  of  this  court  was  now  no  longer  an  officer  in  being, 
rjior  was  the  judge  of  the  Admiralty,  (jhe  court  was  recon-*" 
stitued  by  the  appointment  of  the  judges  of  the  Supreme 
Court,  the  president  judges  of  the  several  courts  of  common 
pleas  in  the  five  districts  or  circuits,  then  existing,  and  of 
three  others,  persons  of  known  legal  abilities,  all  of  whom 
were  commissioned  during  good  behavior,  in  conformity 
with  the  theory  of  the  new  constitution,  removable  by 
^impeachment. 

Any  five  or  more  of  the  justices  composing  the  court  had 
authority  to  act,  with  jurisdiction  to  review  on  appeal  all 
judgments  of  the  Supreme  Court,  and  of  the  registers'  courts, 
in  like  manner  and  under  like  restrictions  as  the  original 
Court  of  Errors  and  Appeals. 

This  court  was  required  to  sit  in  Philadelphia,  at  least 
once  a  year,  on  the  second  Monday  of  July. 

The  compensation  allowed  each  member  of  the  court,  was 
six  dollars  for  each  day's  attendance  upon  the  business  of 
the  court. 

All  matters  depending  in  the  original  Court  of  Errors 
and  Appeals  were  held  to  be  depending  in  the  newly  con- 
stituted court,  "in  the  same  state,"  and  the  justices  were 
required  to  determine  them. 

Thus,  finally  constituted,  the  High  Court  of  Errors  and 
Appeals  existed  and  did  business  as  the  court  of  last  resort 
in  Pennsylvania  until  the  24th  of  February  in  the  year  1806, 

1  Act  of  April  13,  1791,  Smith's  Laws,  Vol.  Ill,  p.  33. 

(20) 


when  there  went  into  effect  the  general  Act  of  the  Assembly 
of  that  year,  ■'  to  alter  the  judiciary  system  of  the  Common- 
wealth." By  the  terms  of  this  act,  the  jurisdiction  of  the 
Supreme  Court  was  more  fully  and  clearly  determined ;  it  was 
nominated  as  the  court  of  last  resort,  and  to  this  end  it  was 
enacted  that  the  judges  of  the  High  Court  of  Errors  and 
Appeals  should  sustain  no  new  cause,  but  should  have  power 
continued  to  hold  two  terms,  at  which  all  the  causes  then 
before  them  should  be  determined,  whereupon  the  said  court 
was  declared  to  be  abolished  and  all  its  powers  and  duties 
to  become  vested  in  and  be  exercised  by  the  Supreme  Court 
of  the  Commonwealth.  The  records  of  the  Court  of  Errors 
and  Appeals  were  directed  to  be  deposited  in  the  office  of 
the  prothonotary  of  the  Supreme  Court  for  the  Eastern  Dis- 
trict, which  officer  was  authorized  and  required  to  receive  the 
same.  It  was  also  made  the  duty  of  the  prothonotary  to 
furnish  copies  of  these  records,  under  the  seal  of  his  office, 
whenever  required,  upon  payment  of  the  usual  fees.  These 
copies  were  declared  to  be  authentic  evidence  and  as  effect- 
ual in  law,  as  if  the  Court  of  Errors  and  Appeals  had  not 
been  abolished,  and  the  copies  had  been  certified  by  its  own 
prothonotary. 

This,  in  brief,  is  the  history  of  the  rise  and  fall  of  the 
highest  Appellate  Court  ever  known  to  Pennsylvania.  It  was 
constituted  with  enthusiastic  and  patriotic  purpose.  It  took 
cognizance,  from  time  to  time,  of  matters  of  vital  impor- 
tance. Its  mission  passed  and  its  usefulness  departed  in  the 
short  space  of  a  quarter  century.  It  is  today  nothing  save 
a  half-forgotten  memory  of  the  past. 

As  the  county  Youghiogany,  which  passed  out  of  existence 
when  the  boundary  disputes  between,  Pennsylvania  upon  the 
one  hand  and  Maryland  and  Virginia  upon  the  other  were 
finally  settled,  was  ever  after  known  to  historians  as  "The 
Lost  County,"  so  those  who  are  familiar  with  the  facts  with 
respect  to  the  former  existence  and  the  fate  of  "The  High 
Court  of  Errors  and  Appeals,"  sometimes  refer  to  it  as 
"The  Lost  Court  of  Pennsylvania." 

(21) 


Antl  now*,  my' brothers,  thanking  you  for  your  cheerfully 
granted  attention  and  the  interest  you  have  shown,  and  with 
a  due  regard  for  the  limits  of  your  patience  and  your  good 
nature,  I  must  for  the  present,  perhaps  for  all  time,  cut  the 
thread  of  this  narrative ;  trusting,  nevertheless,  that  this 
which  I  have  endeavored  to  gather,  by  a  reasonable  amount 
of  diligence,  and  to  present  with  some  regard  to  method, 
may  serve  to  lend  an  insight,  however  imperfect,  into  the 
story  of  the  founding  and  the  upbuilding  of  these  important 
and  honorable  institutions  of  our  Commonwealth  and  be  an 
incentive  for  some  one  to  pursue  the  inquiry  further. 


(22  ) 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 

Renewed  books  are  subject  to  immediate  recall. 


Kirm 


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LD  21A-60m-10,'G5 
(F7763sl0)476B 


General  Library 

University  of  California 

Berkeley 


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